Time to rewrite the NSW Planning Legislation

Doesn't work. Firstly, because of the untransparent way the public are involved. Secondly, because the controls are complex and it is difficult to understand what is actually going to happen next door. Thirdly, because NSW developers, almost without exception, try to get more development than the controls intend.

Instead of trying to cut the public out of the assessment of developments, what is needed are hearing processes better than those that occur before the parliamentary style meetings of councils late on a Monday or Tuesday night. Everyone leaves these meetings angry. Recognising this some councils have independent hearing processes and they are working well. All councils should set up processes that comply with the principles of 'fairness and due process', something that cannot be provided under the rules governing council meetings.

What about achieving sustainability, affordable housing, equity and so on?

A key issue is whether the planning development control legislation can require governments to achieve certain objectives, such as sustainability or affordable housing?

This is a complex issue that needs to be dissected.

What is the scope of the legislation and what can be taken into account in making decisions to impose controls or assess individual developments in accordance with those controls? And what actions can members of the public take if governments are not achieving these objectives.

The current legislation has a detailed set of objects that include encouraging 'the social and economic welfare of the community and a better environment'. More particular objects are encouraging ecological sustainable development and affordable housing.

Objects and Making New Controls

These statutory objects are needed to identify objectives that can be pursued by the imposition of development controls. For example, affordable housing was included when a developer objected to having to provide units at less than market prices. There is a dispute at the moment about extent to which development controls can be used to protect retailers from competition.

A key issue for the design of planning legislation is if and how the community can challenge whether the government's changes to controls do affect a fair balance between the competing objects of the legislation. Should the right be for an inquiry, as in Victoria, should it be the planning Court, or should the executive, or the parliament, or a statutory body of 'philosopher kings and queens' have the final say? How is democracy best served?

Objects and Individual Applications

Certainly the objects should inform the exercise of discretions when making the controls, but once they are made, should the generalized objects, or some of them, be used to modify the application of those controls to particular proposed developments?